Malicious Smears During Double Eleven: Keeping the Legal Response Within the Sales Window

During a major sales event, a rumour about product quality can lead consumers to cancel orders and flood customer service with enquiries before anyone has had a chance to verify it. By the time the enterprise has set the record straight, part of the sales opportunity may already be gone.

A brand is of course entitled to pursue liability for infringement. But what about the orders at stake right now? This is the most practical question enterprises ask of any legal response: by the time there is an outcome, will Double Eleven already be over?

Legal work has to answer that question head-on. During a sales event, priorities should be set around the damage that is actually occurring: establish the facts of the dispute as quickly as possible, give the platform evidence sufficient to support action, let consumers see a reliable explanation, and refer leads on suspected illegal conduct to the relevant authorities without delay. Holding people accountable takes time; these steps can begin immediately.

I. Distinguish Genuine Complaints from Malicious Attacks, and Preserve Evidence Promptly

When negative voices appear in the comments, the first thing an enterprise should check is what consumers have actually experienced. If there is a genuine problem with the product, or after-sales service has fallen short, the enterprise should resolve the real problem first, however strongly the consumer has worded the complaint. Rushing to send a lawyer’s letter can easily turn a consumer dispute into public doubt about the enterprise’s attitude.

The difficulty is that a single wave of online reputation pressure may contain genuine complaints, exaggerated retellings and malicious fabrications all at once. One consumer’s experience does not necessarily support the conclusion that “the entire batch is substandard”; nor can an old video be stripped of the time it was made and used to prove that this year’s sales-event products are defective. The information must therefore be verified first, to separate the issues the enterprise ought to respond to from those it can ask to be corrected or stopped.

Evidence should be preserved while that assessment is under way. Online posts may be edited or deleted and accounts may change their names; once the enterprise has responded publicly in particular, some of the original content may be hard to retrieve. Beyond the disputed content and its links, the enterprise should therefore also save the account homepages, how the content spread, where traffic was being directed and any recurring scripted wording, as a basis for subsequent investigation and enforcement. The enterprise should also retain returns, enquiry and conversion data from its store back end, so that the actual business impact of the incident can be analysed.

II. Make a Request the Platform Can Act On

When a brand complains to a platform, it needs to state clearly which statement is problematic, why it is problematic and what material proves it.

For example, a complaint about old news being recycled should set out the date of the original report, its full content and how the matter was subsequently handled, and point out what the reposted version has left out. A complaint about a quality rumour should match the test materials to the products and test items being questioned; an ordinary product conformity report is not enough on its own to show that the doubts raised are groundless.

How specific the complaint materials are directly affects how the platform reviews and handles them. The Civil Code provides that an infringement notice shall include preliminary evidence and the true identity information of the rights holder. Even where a lawyer’s letter is sent, materials capable of supporting the grounds of complaint still need to be submitted.^[1]

The request should also be chosen according to the strength of the evidence. Where the facts are clear and the evidence is sufficient, the enterprise may ask the platform to delete the content or take measures of equivalent effect; where sufficient evidence is hard to produce in a short time, a corresponding interim handling mechanism is available. The Working Specifications for Website Platforms on Accepting and Handling Reports of Online Infringement Information Involving Enterprises provide that where the grounds of a report are sufficient but full evidence is difficult to produce in the short term, and the information was published at a key point in the enterprise’s business, among other circumstances, the platform shall apply a “time-limited private visibility” measure; where other prescribed circumstances apply, the enterprise may request that a dispute label be added or that a clarification and response service be provided.^[2]

The enterprise needs to explain how its sales-event arrangements, the disputed content and the impact currently occurring are connected. The approach of a sales event alone is not a sufficient reason to ask a platform to delete content.

After submission, someone still needs to be responsible for follow-up: whether requests for supplementary evidence have been received, whether newly appearing links have been included, and whether the handling outcome covers the main content in circulation. Complaints to content platforms and e-commerce platforms, and reports through cyberspace administration channels, can be pursued in parallel as circumstances require.

III. Pursue Legal Accountability and Public Responses in Parallel

A complaint to a platform and a public response to consumers need to emphasise different things, but both must rest on verified facts.

Where rumour-mongering attacks are suspected of constituting a crime, the enterprise should report them promptly to the public security authorities, submitting materials on the untrue information, the scale of dissemination, links between accounts and the impact on business. Where there is evidence that the conduct involves commercial disparagement carried out or instigated by a business operator, a report may also be made to the market regulation authorities. Article 12 of the current Anti-Unfair Competition Law expressly prohibits business operators from fabricating or disseminating, or instructing others to fabricate or disseminate, false or misleading information that damages the business reputation or product reputation of other business operators.^[3]

Whichever route is taken, identifying the organiser behind an attack requires supporting evidence. The enterprise can build its case from where the accounts direct traffic, repeatedly published content and the timing of activity, but it cannot conclude that a competitor organised the attack merely because that competitor benefited from it. In addition, where allegedly infringing information is still spreading and the situation is urgent, the enterprise may assess whether to apply to the court for conduct preservation measures, so as to stop the infringement in time.

Consumers, for their part, usually care about specific things: whether the product they bought has a problem, what happens to payments already made, and how the enterprise intends to deal with the matter. A statement should answer these questions clearly. For issues already established, it should give the basis and the remedy; for matters that cannot yet be confirmed, it should say what remains to be verified. The enterprise should also describe the progress of proceedings accurately, distinguishing between a report being made, a report being accepted, a case being opened and a final finding of illegality, so that imprecise wording does not trigger a fresh dispute. A single line saying “we have instructed lawyers to pursue liability” cannot carry all of this explanation.

During the sales event, these arrangements should be linked up with platform handling and customer communication, so that the work as a whole is not left waiting on a single final outcome.

IV. Before the Sales Event, Get the Preparation Done Early

With a month to go until Double Eleven, enterprises should run through their existing contingency plans for real.

Suppose a batch of posts attacking product quality appears tonight: who can obtain the test reports? Who has the authority to pull store data? What authorisations does a platform complaint require? If the person in charge is offline, who can decide to begin evidence preservation, report to the police or publish a response? If each of these questions requires an ad hoc request for instructions, even the most complete plan will be hard to carry out in time.

Before the sales event, the legal, marketing and customer service teams should together review the product information, promotional claims and after-sales issues most likely to spark disputes. Commonly used supporting materials should be organised in advance, complaint channels should be familiar beforehand, and contact routes to outside counsel and testing institutions should be settled ahead of time. In particular, customer service staff should know which questions they can answer directly and which must be passed on immediately for verification.

During Double Eleven, enterprises cannot fully control how long platforms and the relevant authorities take to complete their handling. But fact-checking, preparation of materials and internal decision-making should no longer cost any time. Against untrue information that is spreading right now, the sooner targeted evidence is produced and a clear request for handling is made, the better the chance of reducing losses during the sales event — and only then can the legal response keep pace with the sales window.

Note: This article is a general sharing of legal information only and does not constitute legal advice on any specific matter.

Legal Basis

[1] Article 1195 of the Civil Code of the People’s Republic of China (in Chinese).

[2] Articles 20 to 22 of the Working Specifications for Website Platforms on Accepting and Handling Reports of Online Infringement Information Involving Enterprises (in Chinese).

[3] Article 12 of the Anti-Unfair Competition Law of the People’s Republic of China (in Chinese).